Publication Ban Warning
WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b) on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 . 486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .
Court of Appeal for Ontario
Date: 2020-01-21 Docket: C61333
Judges: Roberts, Paciocco and Harvison Young JJ.A.
Between: Her Majesty the Queen, Respondent and S.H., Appellant
Counsel: Adam Weisberg and Michelle Psutka, for the appellant Kathleen Doherty, for the respondent
Heard: January 8, 2020
On appeal from the conviction entered on July 2, 2014 by Justice Peter A. Daley of the Superior Court of Justice, sitting with a jury.
Reasons for Decision
[1] S.H. and the complainant maintained a friendship after their live-in relationship ended in 2003. On November 1, 2008, the complainant attended the police station alleging that S.H. had sexually assaulted her after overpowering and choking her in her garage in the early morning hours. S.H. was ultimately charged with sexually assaulting the complainant and attempting to overcome resistance by choking her. He was also charged in connection with three other alleged, violent attacks on the complainant on other occasions: assault causing bodily harm in the early fall of 2003; assault with a weapon within an 18-month period ending on or about October 31, 2005; and another sexual assault in August of 2008. S.H. was convicted by a jury of both offences in connection with the November 1, 2008 incident. He was acquitted of the other charges.
[2] S.H. appeals the convictions. S.H. argues that the trial judge erred in: (1) his jury instruction on the use of cross-count evidence; (2) in his treatment of a prior consistent statement; (3) denying S.H.’s Criminal Code, s. 276 application to admit evidence of a prior sexual experience between S.H. and the complainant; and (4) failing to issue a corrective instruction in response to improper and inflammatory closing arguments from the Crown, which rendered the trial unfair.
[3] The Crown disputes grounds of appeal two to four, but concedes that the trial judge committed the first error in saying to the jury,
if you conclude that the acts charged in one of the counts is or are similar to those charged in another, you may use the evidence on each count together with the rest of the evidence relating to that particular charge in reaching your verdict on any other charge.
[4] The Crown recognizes that: the trial Crown had not brought an application for cross-count admissibility; an admissibility application based on similarity could not have succeeded had it been brought; the trial judge failed to explain when evidence would be “similar”; and he gave no assistance to the jury on what permissible inferences they could draw.
[5] The Crown argues, however, that these errors were not reversible errors since they are “harmless errors” occasioning no prejudice to S.H. within the meaning of s. 686(1)(b)(iii), therefore, permitting the application of the curative proviso. She contends that the jury would not have relied on the trial judge’s instructions because: the cross-count evidence was not similar; the jury acquitted S.H. of charges arising from the three alleged events prior to November 1, 2008; and the trial judge properly instructed the jury not to use propensity reasoning.
[6] The Crown concedes that if we disagree and find any of these errors to be serious, the convictions cannot be saved using the other leg of the s. 686(1)(b)(iii) curative proviso – the overwhelming evidence leg. Specifically, the Crown concedes that it cannot be said in this jury trial, which revolved around credibility, that the evidence of the charges was so overwhelming that no substantial wrong or miscarriage of justice occurred.
[7] We do not find the errors to be harmless. There were similarities between other counts and the November 1, 2008 incident, including variously: S.H.’s consumption of alcohol before the alleged assaults; the rejection of S.H. by the complainant prior to the alleged assaults; head-butting; choking; and a subsequent apology. It is impossible to know what use the jury may have made of such similarities.
[8] The direction not to draw prohibited inferences does not answer this concern since this direction addresses only moral prejudice arising from general bad character, not reasoning prejudice arising from illogical reasoning. Nor can the acquittals on other counts give comfort, as the rule barring the use of acquitted discreditable conduct as similar fact evidence does not apply in multi-count indictments. Moreover, the jury was not instructed against using evidence from counts they were acquitting on in deciding other counts: R. v. Arp, [1998] 3 S.C.R. 339, at para. 79; R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at paras. 66-72. The Crown is therefore unable to satisfy us that these errors were harmless. They are reversible.
[9] This is enough to dispose of the appeal, but since reversible error has occurred and a new trial is required, it is prudent to give direction relating to other matters raised during the appeal.
[10] Before the complainant’s prior consistent statements to her brother can be used for anything other than for the narrative purpose of explaining how the charges got before the court, the Crown should identify the inferences it seeks and obtain a ruling permitting such inferences. The trial judge should also direct the jury as to the limited use that may be made of the evidence and caution the jury against the prohibited uses of prior consistent statements: R. v. D.C., 2019 ONCA 442, at para. 21. In doing so, it is not enough to direct the jury not to use the prior consistent statements as hearsay. It is also impermissible to use consistency between testimony and prior statements as proof of the truthfulness of testimony, or to treat a prior consistent statement made by a witness as corroborating that witness: D.C., at paras. 19, 22.
[11] Moreover, it is inadmissible for a trial Crown, without proving affirmatively that a complainant did not have motive to mislead, to argue in substance that the absence of a known motive to mislead adds to the weight of her testimony: R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 22-23. Where this occurs, the trial judge must direct the jury that this reasoning is not permissible: R. v. M.B., 2011 ONCA 76, 267 C.C.C. (3d) 72, at paras. 30-32. Reasoning in this way undermines the presumption of innocence by reversing the burden of proof and fails to recognize that motives to mislead can be hidden: R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 312, at paras. 16, 44.
[12] Finally, we should not be taken as agreeing with all of the trial judge’s reasoning relating to the Criminal Code, s. 276 analysis, but we would not have found error in the ultimate decision to rule the prior sexual experience evidence to be inadmissible based on the balancing analysis under s. 276(2)(d).
[13] The appeal is allowed, the convictions are set aside, and a new trial is ordered.
“L.B. Roberts J.A.”
“David M. Paciocco J.A.”
“Harvison Young J.A.”
